Memo

BILL NUMBER:S960

TITLE OF BILL: CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY proposing amendments to article 7 of the constitution, in relation to authorization of debt in times of public emergency, a limit on the total amount of state-funded debt, the refunding of state debts, providing for the use of conference committees, consensus forecasting and the submission of a capital program and financing plan

PURPOSE:

This proposed constitutional amendment allows for emergency borrowing in times of public emergency, prohibits "back-door borrowing," and limits total State debt to no more than 5% of total personal income in the State.

SUMMARY OF PROVISIONS:

Section 1 of the resolution proposes an amendment of section 10 of article 7 of the Constitution to add disasters, including those caused by acts of terrorism, to the existing list of purposes for which debt may be incurred on an emergency basis. Emergency borrowing would, however, require the approval of the Governor, the Comptroller, and a majority of the Senate and a majority of the Assembly. The amendment prescribes a procedure for the Governor to propose emergency borrowing and for the Comptroller, and the Senate and the Assembly to give their approval or disapproval.

Section 2 eliminates "back-door borrowing" and, effective with State fiscal year 2022-23, establishes a cap on the total outstanding principal amount of State debt that would be equivalent to 5% of the total personal income in the State. Except for short-term revenue anticipation notes permitted by section 9 of Article 7 of the Constitution, emergency borrowing permitted by section 10 of Article 7, and refundings permitted by section 13 of Article 7, no indebtedness could be incurred for State purposes or to finance State grants unless the debt falls below the 5% cap. To eliminate "back-door borrowing," this section defines State debt to include debt supported by any financing arrangement whereby the State agrees to make payments which will be used, directly or indirectly, for the payment of principal, interest, or related payments on indebtedness incurred or contracted by the State itself for any purpose, or by any State agency, municipality, individual, public or private corporation or any other entity for State capital or operating purposes or to finance grants, loans or other assistance payments made or to be made by or on behalf of the State for any purpose. Among other provisions, the prohibition will apply (i) whether or not the obligation of the State to make payments is subject to

appropriation, or (ii) whether or not debt service is to be paid from a revenue stream transferred by the State to another party that is responsible for making such payments.

The amendment also would authorize the State to issue revenue debt backed by specific revenue sources. Such debt would be included in the debt cap and would be subject to all other restrictions on State debt such as voter approval. The amendment would also allow multiple bond acts to be presented to the voters at one time and would ban future contingent obligation debt. Bond issuances in the aggregate amount of $250 million a year, would be permitted without voter approval, but only if the total outstanding principal amount of State debt resulting from such an issue would not exceed the 5% cap.

The amendment requires that, with the exception of refundings and Short term notes and emergency borrowing permitted by sections 9 and 10 of Article 7, respectively, all future State debt will be permitted only for capital purposes. All new debt, and most refunding debt, will be required to be issued by the State Comptroller.

Section 3 of the resolution proposes an amendment of section 16 of Article 7 of the Constitution that states if at any time the legislature shall fail to make an appropriation for the payment of interest or installments of principal or sinking fund payments, the State Comptroller shall set apart from the first revenues received and pledged to such payments a sum sufficient to pay such interest or installments of principal or contributions to such sinking fund payments, and shall apply the moneys thus set apart.

JUSTIFICATION:

Debt reform is one of the most important challenges facing New York State. The future of the State's finances depends in large measure on its ability to manage debt in a way that is disciplined and effective. Debt reform must impose meaningful caps to ensure that future debt is affordable.

Since 1990, outstanding debt has grown from $14.4 billion to $63.0 billion in 2012, representing a 337 percent increase. The State's use of pay-as-you-go (PAYGO) financing for State funded capital spending has declined, even during times of unprecedented surplus, replaced with an increased dependence on debt.

Furthermore, New Yorkers bear one of the highest debt burdens in the country. New York is ranked second only to California in total debt outstanding. According to Moody's 2011 State Debt Medians, New York is fifth highest in debt per capita behind Connecticut, Massachusetts, Hawaii and New Jersey. New York's $3,149 debt per capita is more than double the national average of $1,408.

This proposed constitutional amendment establishes strict limits on debt. All financing arrangements in which the State agrees, even indirectly, to make payments on indebtedness incurred by the State or by a municipality, public authority or private corporation or other entity on behalf of the State would be subject to a cap equal to 5% of total personal income of the State, beginning in 2022.

"Back-door borrowing", or borrowing outside of constitutional strictures, has been used by New York State to circumvent the requirement for public referendum. As of March 3, 2012, "back-door borrowing" accounted for approximately 94 percent of the $63,0 billion in outstanding State-funded obligations. Only $3,5 billion was approved by the State's voters and issued as General Obligation debt. This proposed constitutional amendment restores accountability and transparency to the decision to incur State debt by requiring voter approval of most future debt, thereby insuring that the decision to obligate future generations of New Yorkers will be subject to full public debate. New York State's capital spending on transportation, mental hygiene facilities, State park improvements, State housing programs and other programs exceeded $9.3 billion in State fiscal year 2011-12, with 52 percent of that amount financed through debt issued by public authorities on behalf of the State. When this proposed amendment is in place, New York State will likely support its capital plan with a combination of General Obligation or revenue debt issued by the Comptroller or "pay-as-you-go" dollars appropriated in the State budget. A total of $250 million in debt could be issued annually without voter approval. Any additional debt issuance would be required to be approved by the State's voters.

There is a suitable time and an inappropriate time to utilize debt. This amendment would promote the appropriate use of State debt by capping its levels, closing loopholes in the existing statutes and restoring the accountability and transparency associated with the requirement for public referenda on the issuance of debt.

LEGISLATIVE HISTORY: S.7544 - To Attorney General for Opinion

EFFECTIVE DATE RESOLVED (if the Assembly concur), That the foregoing amendments be referred to the first regular legislative session convening after the next succeeding general election of members of the assembly, and, in conformity with section 1 of article 19 of the constitution, be published for 3 months previous to the time of such election.

Text

STATE OF NEW YORK
________________________________________________________________________
960
2013-2014 Regular Sessions
IN SENATE
(PREFILED)
January 9, 2013
___________

Introduced by Sen. LIBOUS -- read twice and ordered printed, and when
printed to be committed to the Committee on Judiciary
CONCURRENT RESOLUTION OF THE SENATE AND ASSEMBLY
proposing amendments to article 7 of the constitution, in relation to
authorization of debt in times of public emergency, a limit on the
total amount of state-funded debt, the refunding of state debts,
providing for the use of conference committees, consensus forecasting
and the submission of a capital program and financing plan
Section 1. Resolved (if the Assembly concur), That section 10 of arti-
cle 7 of the constitution be amended to read as follows:
S 10. In addition to the above limited power to contract debts, the
state may contract debts to repel invasion, suppress insurrection, [or]
defend the state in war, [or] to suppress forest fires OR TO RESPOND TO
ANY OTHER EMERGENCY STEMMING FROM A DISASTER INCLUDING, BUT NOT LIMITED
TO, A DISASTER CAUSED BY AN ACT OF TERRORISM; but the money arising from
the contracting of such debts shall be applied for the purpose for which
it was raised, or to repay such debts, and to no other purpose whatever.
NO DEBT SHALL BE CONTRACTED PURSUANT TO THIS SECTION WITHOUT THE CONCUR-
RENCE OF THE GOVERNOR, THE COMPTROLLER, AND A MAJORITY OF THE MEMBERS
ELECTED TO EACH HOUSE OF THE LEGISLATURE; AND THE GOVERNOR SHALL HAVE
POWER TO SUMMON THE COMPTROLLER AND CONVENE THE LEGISLATURE IN EXTRAOR-
DINARY SESSION FOR THE PURPOSE OF CONSIDERING SUCH EMERGENCY DEBT. AT
THE TIME, DATE AND PLACE APPOINTED BY THE GOVERNOR, NO OTHER SUBJECT
SHALL BE ACTED UPON UNTIL EACH, IN THE FOLLOWING ORDER, HAS GIVEN THEIR
APPROVAL OR ANY ONE THEREOF HAS GIVEN THEIR DISAPPROVAL OF THE DEBT
PROPOSED BY THE GOVERNOR TO ENABLE THE STATE TO RESPOND TO SUCH EMERGEN-
CY: THE GOVERNOR, THE COMPTROLLER, THE SENATE AND THE ASSEMBLY. THE
PROPOSAL OF SUCH EMERGENCY DEBT SHALL BE IN THE FORM OF A RESOLUTION
PREPARED AND SUBMITTED BY THE GOVERNOR TO THE COMPTROLLER, THE SENATE
AND THE ASSEMBLY, WHO SHALL APPROVE OR DISAPPROVE SUCH RESOLUTION WITH-
OUT ANY CHANGES THERETO; AND IF SUCH RESOLUTION IS APPROVED BY THE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD89065-01-3
S. 960 2
GOVERNOR, THE COMPTROLLER, AND A MAJORITY OF THE MEMBERS ELECTED TO EACH
HOUSE OF THE LEGISLATURE, THEN SUCH LAW OR LAWS SHALL BE ENACTED AS MAY
BE NECESSARY OR ADVISABLE TO IMPLEMENT SUCH APPROVAL.
S 2. Resolved (if the Assembly concur), That section 11 of article 7
of the constitution be amended to read as follows:
S 11. 1. Except the debts or refunding debts specified in sections 9,
10 and 13 of this article, no debt shall be hereafter contracted by or
[in] ON behalf of the state, unless such debt shall be authorized by law
PURSUANT TO THIS SECTION, for some single work or purpose, to be
distinctly specified therein. [No such] DEBT SUBJECT TO THE PROVISIONS
OF THIS SECTION SHALL INCLUDE ANY DEBT OR OBLIGATION, OTHER THAN DEBT OR
REFUNDING DEBT INCURRED PURSUANT TO SECTIONS 9, 10 AND 13 OF THIS ARTI-
CLE, SUPPORTED IN WHOLE OR IN PART BY ANY FINANCING ARRANGEMENT WHEREBY
THE STATE AGREES, WHETHER BY LAW, CONTRACT, OR OTHERWISE, TO MAKE
PAYMENTS WHICH ARE TO BE USED, DIRECTLY OR INDIRECTLY, FOR THE PAYMENT
OF PRINCIPAL, INTEREST, OR RELATED PAYMENTS ON INDEBTEDNESS INCURRED OR
CONTRACTED BY THE STATE ITSELF FOR ANY PURPOSE, OR BY ANY STATE AGENCY,
MUNICIPALITY, INDIVIDUAL, PUBLIC AUTHORITY OR OTHER PUBLIC OR PRIVATE
CORPORATION OR ANY OTHER ENTITY FOR STATE CAPITAL OR OPERATING PURPOSES
OR TO FINANCE GRANTS, LOANS OR OTHER ASSISTANCE PAYMENTS MADE OR TO BE
MADE BY OR ON BEHALF OF THE STATE FOR ANY PURPOSE. IF THE STATE AGREES
OR HAS AGREED ON OR AFTER APRIL FIRST, NINETEEN HUNDRED NINETY-EIGHT TO
MAKE FUTURE REVENUES FROM A SPECIFIC STATE SOURCE AVAILABLE FOR THE
PURPOSE OF SUPPORTING DEBT OF ANY MUNICIPALITY, INDIVIDUAL, PUBLIC OR
PRIVATE CORPORATION OR ANY OTHER ENTITY, OR, IF ON OR AFTER SUCH DATE, A
PROGRAM OF DEBT IS AUTHORIZED TO BE ISSUED WHERE STATE AID IS INTENDED
TO BE THE SOLE SOURCE OF PAYMENT OF DEBT SERVICE, SUCH DEBT SHALL BE
CONSIDERED TO BE A DEBT FOR THE PURPOSE OF FINANCING A STATE GRANT, LOAN
OR OTHER ASSISTANCE PAYMENT AND SHALL BE SUBJECT TO THE PROVISIONS OF
THIS SECTION. THE PROVISIONS OF THIS SECTION SHALL APPLY (I) WHETHER OR
NOT THE OBLIGATION OF THE STATE TO MAKE PAYMENTS IS SUBJECT TO APPROPRI-
ATION, OR (II) WHETHER OR NOT DEBT SERVICE IS TO BE PAID FROM A REVENUE
STREAM TRANSFERRED BY THE STATE TO ANOTHER PARTY THAT IS RESPONSIBLE FOR
MAKING SUCH PAYMENTS.
2. THE LEGISLATURE MAY, BY LAW, AUTHORIZE THE STATE TO CONTRACT DEBT
SECURED BY A PLEDGE OF SPECIFIC STATE REVENUES AUTHORIZED BY SUCH LAW TO
BE DEPOSITED IN A DEDICATED TRUST FUND OR FUNDS CREATED FOR A SINGLE
CAPITAL WORK OR PURPOSE. THE LEGISLATURE SHALL, BY LAW, IDENTIFY THE
CAPITAL WORK OR PURPOSE TO BE FINANCED WITH SUCH DEBT. REVENUES IN
EXCESS OF THE REQUIRED PAYMENTS OF DEBT SERVICE AND RELATED PAYMENTS ON
SUCH DEBT SHALL BE AVAILABLE FOR OTHER PURPOSES, AS PROVIDED BY LAW.
3. EXCEPT AS PROVIDED IN SUBDIVISION 5 OF THIS SECTION, NO law AUTHOR-
IZING DEBT TO BE CREATED BY THE STATE PURSUANT TO SUBDIVISIONS 1 AND 2
OF THIS SECTION shall take effect until it shall, at a general election,
have been submitted to the people, and have received a majority of all
the votes cast for and against it at such election nor shall it be
submitted to be voted on within three months after its passage [nor at
any general election when any other law or any bill shall be submitted
to be voted for or against] BY THE LEGISLATURE.
The legislature may, at any time after the approval of such law by the
people, if no debt shall have been contracted in pursuance thereof,
repeal the same; and may at any time, by law, forbid the contracting of
any further debt or liability under such law.
4. DURING THE FISCAL YEAR BEGINNING APRIL FIRST, TWO THOUSAND TWENTY-
THREE AND IN EVERY FISCAL YEAR THEREAFTER, NO DEBT AUTHORIZED PURSUANT
TO THIS SECTION SHALL BE INCURRED UNLESS THE TOTAL PRINCIPAL AMOUNT OF
S. 960 3
DEBT TO BE INCURRED PURSUANT TO SUCH LAW, TOGETHER WITH THE TOTAL PRIN-
CIPAL AMOUNT OF DEBT ALREADY OUTSTANDING, SHALL BE EQUAL TO OR LESS THAN
FIVE PERCENT OF THE TOTAL PERSONAL INCOME OF THE STATE AS DETERMINED BY
LAW. DEBT SUBJECT TO THE LIMIT IMPOSED BY THIS SECTION SHALL INCLUDE ALL
DEBT, WHENEVER ISSUED, DESCRIBED IN SUBDIVISIONS 1 AND 2 OF THIS SECTION
BUT SHALL NOT INCLUDE THE DEBTS SPECIFIED IN SECTIONS 9, 10 AND 13 OF
THIS ARTICLE.
5. DURING ANY FISCAL YEAR, DEBT IN THE COMBINED AGGREGATE AMOUNT OF
TWO HUNDRED FIFTY MILLION DOLLARS MAY BE INCURRED PURSUANT TO A LAW OR
LAWS THAT ARE NOT SUBMITTED FOR APPROVAL BY THE PEOPLE. SUCH DEBT SHALL
BE INCURRED ONLY FOR CRITICAL CAPITAL NEEDS. HOWEVER, IN NO EVENT SHALL
DEBT INCURRED IN FISCAL YEARS BEGINNING IN TWO THOUSAND TWENTY-THREE AND
THEREAFTER PURSUANT TO SUCH LAW OR LAWS RESULT IN A TOTAL PRINCIPAL
AMOUNT OF DEBT IN EXCESS OF THE LIMIT DETERMINED PURSUANT TO SUBDIVISION
4 OF THIS SECTION.
6. (I) ALL DEBT SUBJECT TO THE PROVISIONS OF THIS SECTION SHALL,
EXCEPT FOR REFUNDING DEBT, BE INCURRED ONLY FOR A CAPITAL PURPOSE
AUTHORIZED BY LAW, AND (II) ALL DEBT SUBJECT TO THE PROVISIONS OF THIS
SECTION AND ALL DEBT AND REFUNDING DEBT SPECIFIED IN SECTIONS 9, 10 AND
13 OF THIS ARTICLE SHALL, IF INCURRED ON OR AFTER THE FIRST DAY OF THE
FIRST FISCAL YEAR BEGINNING AT LEAST ONE YEAR AFTER THE EFFECTIVE DATE
OF THIS SUBDIVISION, BE IN THE FORM OF OBLIGATIONS ISSUED BY THE COMP-
TROLLER.
7. NOTHING CONTAINED IN THIS SECTION SHALL INVALIDATE DEBT OBLIGATIONS
OUTSTANDING ON THE EFFECTIVE DATE OF THIS SUBDIVISION THAT WOULD BE
SUBJECT TO THE PROVISIONS OF THIS SECTION IF INCURRED AFTER SUCH EFFEC-
TIVE DATE, AND THE STATE MAY CONTINUE TO PROVIDE FOR PAYMENTS RELATED TO
SUCH DEBT ON THE SAME TERMS UNDER WHICH SUCH DEBT WAS INCURRED;
PROVIDED, HOWEVER, THAT NO SUCH DEBT SHALL BE REFUNDED UNLESS SUCH
REFUNDING COMPLIES IN ALL RESPECTS WITH THE REQUIREMENTS OF SECTION 13
OF THIS ARTICLE. THE PROVISIONS OF SECTION 16 OF THIS ARTICLE SHALL NOT
APPLY TO STATE PAYMENTS WITH RESPECT TO ANY SUCH OUTSTANDING OBLIGATIONS
UNLESS SUCH PROVISIONS WOULD HAVE APPLIED PRIOR TO THE EFFECTIVE DATE OF
THIS SUBDIVISION.
8. DEBT OBLIGATIONS ISSUED TO REFUND OUTSTANDING STATE DEBT, REGARD-
LESS OF WHETHER SUCH OUTSTANDING DEBT WAS INCURRED PRIOR TO THE EFFEC-
TIVE DATE OF THIS SUBDIVISION, SHALL NOT BE COUNTED FOR THE PURPOSES OF
THE LIMIT IMPOSED BY SUBDIVISION 3 OF THIS SECTION IF SUCH REFUNDING
COMPLIES IN ALL RESPECTS WITH SECTION 13 OF THIS ARTICLE. FOR PURPOSES
OF THIS SUBDIVISION AND SUBDIVISION 7 OF THIS SECTION, ANY REFUNDING
DEBT THAT DOES NOT EXTEND BEYOND THE FINAL MATURITY OF THE DEBT BEING
REFUNDED SHALL BE DEEMED TO COMPLY WITH THE PROVISIONS OF SUBDIVISION 6
OF SECTION 13 OF THIS ARTICLE, PROVIDED THAT THERE IS AN ACTUAL DEBT
SERVICE SAVINGS IN EVERY YEAR TO MATURITY AS A RESULT OF THE ISSUANCE OF
THE REFUNDING DEBT.
9. AFTER THE EFFECTIVE DATE OF THIS SECTION, THE STATE SHALL NOT,
EXCEPT AS SPECIFICALLY AUTHORIZED IN ANOTHER SECTION OF THIS CONSTITU-
TION, AGREE TO MAKE PAYMENTS, DIRECTLY OR INDIRECTLY, WHETHER OR NOT
SUBJECT TO APPROPRIATION, THAT ARE TO BE AVAILABLE TO PAY DEBT SERVICE
ON ANY DEBT INCURRED BY A MUNICIPALITY, INDIVIDUAL, PUBLIC AUTHORITY OR
OTHER PUBLIC OR PRIVATE CORPORATION OR ANY OTHER ENTITY, FOR ANY
PURPOSE, IF SUCH PAYMENTS ARE EXPECTED TO BE USED TO PAY DEBT SERVICE
ONLY IF OTHER SOURCES AVAILABLE FOR THE PAYMENT OF DEBT SERVICE ARE
INADEQUATE. ANY PROVISION REQUIRING THE STATE TO REPLACE MONIES USED TO
PAY DEBT SERVICE SHALL BE INCLUDED IN THE PROHIBITION SET FORTH IN THIS
SUBDIVISION. OUTSTANDING DEBT THAT WOULD BE PROHIBITED BY THIS SUBDIVI-
S. 960 4
SION IF SUCH DEBT HAD BEEN INCURRED AFTER THE EFFECTIVE DATE OF THIS
SUBDIVISION MAY BE REFUNDED BY THE ENTITY THAT INCURRED THE OUTSTANDING
DEBT PROVIDED THAT THE PROVISIONS OF SUBDIVISIONS 7 AND 8 OF THIS
SECTION ARE COMPLIED WITH EXCEPT THE REQUIREMENT THAT SUCH REFUNDING
DEBT OBLIGATIONS BE ISSUED BY THE COMPTROLLER.
10. THE LEGISLATURE MAY, AT ANY TIME AFTER THE ENACTMENT OR APPROVAL
OF LAW AUTHORIZING THE STATE TO CONTRACT DEBT PURSUANT TO THIS SECTION,
IF NO DEBT SHALL HAVE BEEN CONTRACTED IN PURSUANCE THEREOF, REPEAL THE
SAME; AND MAY AT ANY TIME, BY LAW, FORBID THE CONTRACTING OF ANY FURTHER
DEBT OR LIABILITY UNDER SUCH LAW.
S 3. Resolved (if the Assembly concur), That section 16 of article 7
of the constitution be amended to read as follows:
S 16. The legislature shall annually provide by appropriation for the
payment of the interest upon and installments of principal of all debts
or refunding debts created on behalf of the state except those
contracted under section 9 of this article, as the same shall fall due,
and for the contribution to all of the sinking funds created by law, of
the amounts annually to be contributed under the provisions of section
12, 13 or 15 of this article. [If] WITH RESPECT TO DEBT CONTRACTED OTHER
THAN PURSUANT TO SUBDIVISION 2 OF SECTION 11 OF THIS ARTICLE, IF at any
time the legislature shall fail to make any such appropriation, the
comptroller shall set apart from the first revenues thereafter received,
applicable to the general fund of the state, a sum sufficient to pay
such interest, installments of principal, or contributions to such sink-
ing fund, as the case may be, and shall so apply the moneys thus set
apart. IF AT ANY TIME THE LEGISLATURE SHALL FAIL TO MAKE AN APPROPRI-
ATION FOR THE PAYMENT OF INTEREST OR INSTALLMENTS OF PRINCIPAL OR SINK-
ING FUND PAYMENTS OR RELATED PAYMENTS ON ANY DEBT CONTRACTED PURSUANT TO
SUBDIVISION 2 OF SECTION 11 OF THIS ARTICLE, THE COMPTROLLER SHALL SET
APART FROM THE FIRST REVENUES RECEIVED AND PLEDGED TO SUCH PAYMENTS, A
SUM SUFFICIENT TO PAY SUCH INTEREST OR INSTALLMENT OF PRINCIPAL OR
CONTRIBUTIONS TO SUCH SINKING FUND PAYMENTS OR RELATED PAYMENTS, AND
SHALL SO APPLY THE MONEYS THUS SET APART, PROVIDED HOWEVER THAT SUCH
REVENUES MUST BE SET ASIDE AND APPLIED IN A MANNER WHICH ENSURES THAT
PLEDGED REVENUES ARE APPLIED ONLY TO PAYMENTS ON DEBT FOR WHICH SUCH
REVENUES WERE PLEDGED PURSUANT TO SUBDIVISION 2 OF SECTION 11 OF THIS
ARTICLE. The comptroller may be required to set aside and apply such
revenues as aforesaid, at the suit of any holder of such bonds.
Notwithstanding the foregoing provisions of this section, the comp-
troller may covenant with the purchasers of any state obligations that
they shall have no further rights against the state for payment of such
obligations or any interest thereon after an amount or amounts deter-
mined in accordance with the provisions of such covenant is deposited in
a described fund or with a named or described agency or trustee. In such
case, this section shall have no further application with respect to
payment of such obligations or any interest thereon after the comp-
troller has complied with the prescribed conditions of such covenant.
S 4. Resolved (if the Assembly concur), That the foregoing amendments
be referred to the first regular legislative session convening after the
next succeeding general election of members of the assembly, and, in
conformity with section 1 of article 19 of the constitution, be
published for 3 months previous to the time of such election.

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